UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4382

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAWRENCE REGINALD SMITH, a/k/a Reginald

Newton, a/k/a Little Reggie,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (3:05-cr-00384-REP)

Submitted: January 31, 2007 Decided: February 16, 2007

Before MOTZ and WILKINSON, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Christopher C. Booberg, Richmond, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Sara E. Flannery, Assistant

United States Attorney, Tara M. McManigal, Third Year Intern,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Lawrence Reginald Smith was convicted by a jury of one

count of possession with intent to distribute less than 500 grams

of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1)

(2000). Smith was sentenced by the district court to forty-one

months’ imprisonment. Finding no error, we affirm.

On appeal, Smith contends the district court improperly

admitted the recording of a telephone conversation between Smith

and another individual over defense objection. We review a

district court’s decision regarding the admission or exclusion of

evidence for abuse of discretion. United States v. Lancaster, 96

F.3d 734, 744 (4th Cir. 1996). Such discretion is abused only when

a district court has acted “arbitrarily or irrationally.” United

States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (internal

quotation marks omitted). However, evidentiary rulings based on

erroneous legal conclusions are “by definition an abuse of

discretion.” United States v. Turner, 198 F.3d 425, 430 (4th Cir.

1999).

Smith argues the Government violated Fed. R. Crim. P.

16(a)(1)(B) as well as an informal discovery agreement by not

disclosing his recorded statement well in advance of trial. He

asserts the Government was “charged with knowledge” that Smith and

James Edward Gainer, the Government’s cooperating witness,

conversed over the telephone about matters of interest subsequent
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to Gainer’s arrest. Smith further asserts that his statement was

within the Government’s control “because it was digitally recorded

by a regional jail that has a long standing history of housing

federal inmates.”

Rule 16(a)(1)(B) requires the Government, upon

defendant’s request, to disclose any relevant written or recorded

statements made by the defendant that are within the Government’s

possession, custody, or control and which the Government knows, or

through the exercise of due diligence could know, exist. Fed. R.

Crim. P. 16(a)(1)(B)(i). Because the phone conversation between

Smith and Gainer occurred while Gainer was in a state facility

under state charges, we conclude the district court properly

determined that the statements were not in the Government’s

“possession, custody, or control.” Moreover, it is undisputed that

once the Government obtained possession of the recorded statements,

it provided Smith with a copy thereof in compliance with Rule 16.

Smith also contends the evidence was insufficient to

sustain his conviction under 21 U.S.C. § 841(a)(1). To determine

if there was sufficient evidence to support a conviction, we

consider whether, taking the evidence in the light most favorable

to the Government, substantial evidence supports the jury’s

verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). We

review both direct and circumstantial evidence, and permit the

“government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Smith argues the

evidence was insufficient because the Government’s case rested on

the “unreliable” testimony of its cooperating witness, Gainer.

Witness credibility, however, is solely within the province of the

jury and will not be reassessed on appeal. See United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Accordingly, we affirm Smith’s conviction. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED